Pandian Marimuthu v Guan Leong Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Zainol Abeedin B Hussin
• Judgment Date: 30 July 2002
• Neutral Citation: [2002] SGDC 189
• Published date: 19 September 2003
• Year: 2002
• Citation: [2002] SGDC 189
• Subject Matter: Employment Law,Employees’ duties,Breach of employers' duties under Factories Act and Factories (Building Operations and Works of Engineering Construction) Regulations, arising injuries suffered at construction site,Whether there was a proper system of work and effective supervision,Issue of contributory negligence in not looking after his own safety by acting as a reasonable, prudent man,Whether the Plaintiff was entitled to pre-trial loss of earnings,Quantum of damages
• Court: District Court (Singapore)

Judgment

GROUNDS OF DECISION

1. The Plaintiff, an Indian National employed by the Defendants on a work permit, claimed against the Defendants for damages arising from fractures of his lumbar vertebrae and right knee and other associated injuries. He suffered these injuries on 2 Jan 99 at the Defendants’ construction site when his co-workers pushed the mobile staging he was standing on and he fell off it. The Plaintiff alleged that the Defendants, their servants or agents were negligent by breaching of their duty to take reasonable care for the Plaintiff’s safety as their servants and the Defendants’ breach of their statutory under the Factories Act and the Factories (Building Operation and Works of Engineering Construction) Regulations.

2. The Defendants’ case was that the said accident was caused solely or contributed to by the Plaintiff’s negligence in failing to comply with safety precautions and measures he became familiar with in the course of his work and during safety training courses. They averred that there was no defect in the mobile staging or its caster. They also disputed the heads and quantum of damages suffered by the Plaintiff.

Issues

1) Whether the accident was caused by or contributed to by the Defendants’ negligence at common law, in failing to exercise reasonable care for the Plaintiff.

2) Whether the Defendants were in breach of their statutory duty owed to the Plaintiff.

3) Whether the Plaintiff was entitled to pre-trial loss of earnings, future medical expenses and loss of earning capacity as claimed.

4) What is the quantum of damages which the Plaintiff is entitled to.

Plaintiff’s Case

3. The Plaintiff (PW3) and his two medical witnesses (PW1 and PW2) gave

evidence in support of his claim. The Plaintiff deposed in PA1 that he was an Indian Passport holder employed by the Defendants who were General Contractors, constructing a road within Changi Airport next to Terminal 2. The construction site was a factory within the meaning of the Factories Act. The road construction was carried out about 10 meters below ground level connecting Terminal Two to the cargo complex and, above the road on the ground level, bridges were to be constructed for aircraft movements.

4. On 2 Jan 99 the Plaintiffs and 3 of his colleagues Nalliah, Pandi and Vellaiyan were given instructions by the Defendants’ foreman to dismantle wooden formworks inside one of the two rooms, 6.5 meters high and 6.2 meters square in dimension, built below one of the bridges. They were provided with "a mobile tower scaffolding or staging" for this purpose. The staging was about 4.7 meters high and 1.7 meters square in size and each of its four legs had a caster, about 15 cm in diameter, fixed at the end. The Plaintiff and Nalliah went up the staging and stood on the working platform on top of it to dismantle the form works with modified crowbars and threw the debris down whereas Pandi and Vellaiyan remainded below and removed the fallen pieces of the formwork. Pandi and Vellaiyan would also push the staging from one spot to another as the work progressed.

5. In the morning of 2 Jan 99, at about 10.30 a.m., the Plaintiff and Nalliah had completed dismantling the formworks at a certain spot in the room. Pandi and Vellaiyan then proceeded to push the staging to another spot "when one of the four casters hit a snag (a long nail) on the floor". This resulted in the caster coming off and the staging was tilted to one side and caused the Plaintiff and Nalliah to lose their balance. The Plaintiff and Nallaiah then "fell of the staging, which subsequently toppled". The Plaintiff "was in fact also struck by part of the fallen staging" (paragraph 8 of PA1). The Plaintiff believed that the accident was caused by the negligence of the Defendants, their servants or agents and by the Defendants’ breach of their duty, as employers or masters, to take reasonable care for the safety of the Plaintiff, as their servant. The Plaintiff averred, in the alternative, that the accident was occasioned by the breach of the Defendants, their servants or agents of their statutory duty under the Factories Act and the Factories (Building Operations and Works of Engineering Construction) Regulations (paragraphs 3, 9 and 10 of PA1).

6. At the beginning of the trial, the parties had agreed to the admission of the documents in the Bundle of Documents (AB 1 – 42 at page 2 of the N.E). The Plaintiffs’ Work Permit Card at AB1 showed him to be permitted to work as a construction worker for the Defendants from 20 Dec 98 to 19 Dec 99. The Plaintiff further deposed that his "work permit employers", namely the Defendants, had lodged a Notice of Accident, Form A, with the Ministry of Manpower (MOM) as reflected in AB 3 – 6. This was signed by the Defendants’ director, DW3 (AB6 and DA3). The Plaintiff highlighted the Defendants’ description of the accident in AB 6 that:

"The said worker was deploy to open the form work at Mechanical Room to erect the scaffolding for access to work. While climbing up the scaffolding to working platform, he slip and fell and his right leg was injured".

He declared that this version was false as he was not climbing up the scaffolding immediately preceding his fall, nor did he slip and fall off the scaffolding in the process of climbing up the scaffold. He reiterated that he "was in fact dismantling the formwork in the room whilst atop the scaffold" and, having completed the dismantling at one spot of the room, he and Nalliah "were being pushed to another spot". In this process of being moved, "one of the casters had hit a snag in the ground, causing my fall and the subsequent injuries thereafter". He maintained that the accident happened as averred in his statement of claim and not as described by the Defendants (DW3 in AB6).

7. The Plaintiff also deposed that the Defendants’ negligence or breach of statutory duty caused him severe injuries and loss and expenses. He suffered "a back injury associated with fractures of the L2 and L3 vertebrae". He also initially stated that he suffered "a right knee injury associated with an avulsion fracture of the fibula". These injuries were consistent with the two medical reports from the New Changi General Hospital, dated 30 Jul 99 and the Orthopaedic ‘A’ Care Service Pte Ltd, dated 7 Jun 2000 (at AB 7 and AB 8-9 respectively). The statement on the fracture of the fibula would eventually be corrected to be the fracture of the tibia, by the two medical witnesses PW1 and PW2 (pages 3, 4, 6 11 and 18 of the NE). The Plaintiff went on to depose about his disabilities, namely the pain in his back and right knee; inability to carry heavy object or walk long distances, or to run jump, squat or sit cross legged. He also had stiffness in and tenderness over his right knee and weakness in his right lower limb; tenderness over the mid and lower region; and decrease in the range of movements of his lumbar spine.

8. The Plaintiff stated that he had also incurred transport expenses of $154 (this was eventually agreed by the parties at $105 at page 1 of the NE). He incurred $271 as medical expenses (agreed at $236 at page 74 of the NE). He claimed for $4420 as loss of earnings during two periods of his medical leave for 3 months based on his salary of $850 per month. However as the Defendants had reimbursed $2380 during the medical leave of the Plaintiff, he claimed only for $2040 for loss of earnings during his medical leave (paragraph 17 of PA1). It was also agreed by the parties from the outset that for the period of medical leave from 2 Jan 99 to 5 Jul 99 the Defendants had to pay $1878.30 (page 1 of the NE).

9. The Plaintiff further deposed that, from 8 Jul 99, he could not continue working due to the severity of the injuries to his spine and his knee. Although his work permit was valid up to 9 Dec 99 he had to leave the Defendants’ employ on 8 Jul 99 and he claimed for loss of earning during the period from 9 Jul 99 to 19 Dec 99, 5months at $850 per month amounting to $4,533. The Plaintiff also claimed for loss of pre-trial earnings from 20 Dec 99 to the trial date because he could foresee that he would be unable to obtain employment due to the severity of his injuries. He could not return to his former employment of farming in India and he stated that there was "no such thing as light work" in India.

10. In support of his alternative claims for loss of future earnings or loss of earning capacity, the Plaintiff pointed out that he was 28 years old at the time of the accident. His average monthly income as a farmer in India, before working in Singapore, was about Rps 12,000 or S$480.00. He would not he able to work as a construction worker or do any heavy manual work. Since he left the Defendants’ employment he had to expend his personal savings on his living expenses in Singapore. His savings had long dissipated and he had difficulty in borrowing money from friends to sustain himself. If not for the accident he could have worked for another 4 years in Singapore or he could work in the Middle East countries. He had lost these work opportunities and the accident marked the end of his life as a construction worker. He had limited avenues, if any, of employment. He would probably not be able to find any job in India because of the high rate of unemployment there and because of his injuries. He had little education and no work related skills. He could only do manual labour, which he was now incapable of doing. He prayed for the sum of $50,000 for loss of future earnings or loss of earning capacity.

11. Under cross-examination, the Plaintiff testified that he started working for the Defendants as a construction worker since March 1997. Before that, he was working for the Defendants’ sub-contractor or contractor for 2 months (pages 25, 36 and 37 of the NE). He had carried out dismantling works for 3 to 4 months before the accident and before that his work for Defendants was to "bend metal...